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Friday, February 20, 2009

What emergency?

In companion cases, Sam Kepfield won in State v. Frishenmeyer, No. 99,975 (Kan. App. Feb. 13, 2009)(unpublished), and John Sullivan won in State v. Swansen, No. 100,331 (Kan. App. Feb. 13, 2009)(unpublished), affirming Judge Chambers' suppression orders in a couple of Reno County possession/manufacture prosecutions. The cases involved roommates and application of the emergency doctrine:

The State argues that the officers legally entered the curtilage of [Frischenmeyer's/Swansen's] residence pursuant to the emergency doctrine. According to the State, because the officers were tracking the source of a potentially toxic odor, they were justified in making a warrantless entry onto the property.

. . . .

Here, the evidence shows that [the officers] smelled the odor of anhydrous ammonia in [Frischenmeyer's/Swansen's] neighborhood. Because the officers were in a residential area where anhydrous ammonia is unlikely to be used for legal purposes, they suspected a methamphetamine lab operation. The officers pinpointed Frischenmeyer's residence as the source of the odor, specifically Frishenmeyer's very small backyard. As the district court found, an officer had “isolated the odor and was conducting an investigation at the time of the search of the back porch area within the curtilage of the residence.”

The officers entered the backyard and peeked into two structures attached to the back of the residence. Inside the enclosed back porch, [an officer] observed several items associated with the production of methamphetamine. However, he did not see a source for the anhydrous ammonia. The officers left the suspicious items in the back porch and went around to knock on the front door of the residence. After informing Swansen of the odor, the officers did not alert any other neighbors or call the fire department or a Hazmat team. Instead, they attempted to obtain a warrant to search the residence for evidence of a methamphetamine lab. The officers took several hours to obtain and execute the search warrant, and they did not take any immediate action to address the ill effects of the anhydrous ammonia odor on or to the surrounding neighborhood. In fact, there was no testimony about whether the officers even inquired if other persons were present inside the home who might be suffering from the effects of the anhydrous ammonia fumes.

The State has the burden to establish the applicability of the emergency doctrine in order to uphold the lawfulness of a search. Although we recognize that methamphetamine labs do present a dangerous condition, we conclude the State did not sustain its burden that there was an emergency at hand and an immediate need for the officers' assistance for the protection of life or property. Thus, the officers' warrantless search of the back porch cannot be justified under the emergency doctrine.

The COA went on to reject the state's attempt to save this search on consent and on the good-faith exception:

Finally, the State argues that the Leon good-faith exception should apply to the execution of the search warrant. Once again, however, the State did not make this argument to the district court, and the issue is being raised for the first time on appeal. As we have stated, an issue not raised before the district court generally will not be considered for the first time on appeal.

So, while we often get hit with the procedural default bar, it also works against the state in these interlocutory appeals.

[Update: the state did not file a PR and the mandate issued on March 19, 2009].